Mansukhlal Parsotambhai Lalani vs State Of Gujarat
2022 Latest Caselaw 2535 Guj

     C/SCA/4471/2019                            JUDGMENT DATED: 07/03/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4471 of 2019
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 4474 of 2019
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 5429 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       MANSUKHLAL PARSOTAMBHAI LALANI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1
MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                     Date : 07/03/2022
                 COMMON ORAL JUDGMENT

1. RULE returnable forthwith. Ms.Surbhi Bhati learned

AGP waives service of notice of Rule on behalf of the

respondent State.

2. With the consent of learned advocates for the

respective parties, the petitions are taken up for

final hearing.

C/SCA/4471/2019 JUDGMENT DATED: 07/03/2022

3. In these petitions under Article 226 of the

Constitution of India, the petitioners have asked for

a direction to grant the second higher pay scale to

the petitioners with effect from the date on which

they completed 15 years of service on having

granted the first higher pay scale.

4. Facts of Special Civil Application No.4471 of 2019

are taken into consideration since on the same

analogy, the other two petitions can be decided.

5. The petitioner was appointed as a Forest Guard on

16.07.1974. Vide an order dated 18.12.1992, the

petitioner was granted the first higher pay scale

with effect from 01.06.1987. By an order dated

10.02.2010, the petitioner was granted the second

higher pay scale with effect from 01.06.2002. This

was counting 15 years of service with effect from

01.06.1987. By an oral order dated 04.02.2016, the

petitioner was granted deemed date of promotion to

the post of Forester with effect from 11.11.1982.

Obviously therefore having been promoted to the

post of Forester, the benefit of first higher pay scale

C/SCA/4471/2019 JUDGMENT DATED: 07/03/2022

with effect from 01.06.1987 was cancelled by an

order dated 06.09.2016. By an order dated

22.12.2017, the petitioner was granted the first

higher pay scale with effect from 11.11.1991 on

completion of nine years in the cadre of Forester.

6. The case of the petitioner is that the petitioner is

entitled to the second higher pay scale with effect

from 11.11.2006 i.e. on completion of 15 years of

service from the date on which the first higher scale

was granted.

7. Mr.Samir Gohil learned counsel for the petitioner

would submit that the issue is covered by a decision

assailing the impugned order by which the higher

pay scale was rejected to the petitioner as the

petitioner has not passed the departmental

examination for the promotion to the post of Range

Forest Officer. He would rely on a decision

rendered in Letters Patent Appeal No.1443 of 2017

dated 07.09.2017 and submit that the issue is

covered.

C/SCA/4471/2019 JUDGMENT DATED: 07/03/2022

8. Mr.Gohil would place reliance on the order of this

Court dated 01.02.2022 passed in Special Civil

Application No.4281 of 2019, wherein, the Court had

considered the order of the Division Bench.

9. Ms.Surbhi Bhati learned AGP would draw the

attention of the Court to the affidavit-in-reply filed in

Special Civil Application No.4471 of 2019 and

submit that once the promotion to the post of

Forester was granted with effect from 11.11.1982,

the first higher grade pay was cancelled. The

petitioner is not entitled to get the benefits of the

second higher pay scale of ACF because he did not

pass the departmental examination for the post of

ACF and he retired on 31.08.2007.

10. Reliance was placed on the Government Resolution

dated 14.09.2007, wherein, according to Ms.Bhati, it

is clearly mentioned in Clause 2(1) that any

employee who did not pass the computer

examination, will get temporary pay scale but he has

to pass the computer examination. She would

further submit that as per the records of the office,

C/SCA/4471/2019 JUDGMENT DATED: 07/03/2022

the petitioner has not cleared the departmental

examination and therefore he is not entitled to the

benefits of higher pay scale.

11. Considering the fact that an identical issue was

decided by the Division Bench of this Court by an

oral order dated 07.09.2017 in Letters Patent Appeal

No.1443 of 2017, facts of the case therein would

indicate that the State was in appeal against the

order of the learned Single Judge which granted the

benefit of the second higher pay scale. The facts

were similar to the facts of the present petition. The

petitioner therein was denied the benefit of second

higher pay scale on the ground that he retired on

superannuation with effect from 31.01.2010.

Recoveries were ordered on he being promoted as

Forester.

12. Learned AGP had then also placed reliance on

Clause 2(4)(c)(6) of the Government Resolution

dated 02.07.2007 and submitted that since the

petitioner had not passed the departmental

examination, he was not entitled to the benefits of

C/SCA/4471/2019 JUDGMENT DATED: 07/03/2022

the second higher pay scale.

13. The Division Bench of this Court while deciding

Letters Patent Appeal No.1443 of 2017 dated

07.09.2017 held as under:

"5. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it emerges that the petitioner joined the service of the respondent department as Forest Beat Guard on 17.03.1976. Thereafter, the first higher pay-scale of Forester was granted to him by an order dated 12.12.1995 w.e.f. 01.06.1987. At this stage, it is relevant to note that the petitioner was thereafter actually promoted on the post of Forester by an order dated 25.06.1998. Subsequently the respondent by an order dated 10.10.2008 granted him deemed date promotion to the post of Forester w.e.f. 11.11.1982. Therefore the first higher pay-scale which was granted w.e.f. 01.06.1987 to the petitioner was recovered from him as he was in fact promoted to the post of Forester w.e.f. 11.11.1982.

6. At this stage, it is also required to be noted that the petitioner attained the age of superannuation and retired from service on 31.01.2010 and after the date of his retirement the petitioner was granted revised first higher pay-scale of RFO w.e.f. 11.11.1991. The first higher pay-scale of RFO was granted w.e.f. 11.11.1991 because the petitioner completed 9 years of service on the post of Forester from 11.11.1982. Thus, the first higher pay-scale of RFO was granted to the petitioner after the petitioner retired from service. Thus, when the respondent authority has passed the order granting first higher pay-scale of RFO to the petitioner w.e.f. 11.11.1991 by passing the order, there was no occasion for the petitioner to appear in the

C/SCA/4471/2019 JUDGMENT DATED: 07/03/2022

departmental examination for getting second higher pay-scale of ACF. As per the prevalent Rules, petitioner was eligible for second higher pay-scale w.e.f. 11.11.2006 and therefore petitioner raised the demand for second higher pay-scale which was denied to him. Thus, the respondent authorities is not right in contending that as the petitioner has not cleared the departmental examination, he is not eligible for second higher pay-scale.

7. In view of the aforesaid discussions and in view of the reasonings recorded by the learned Single Judge, we are of the view that no error is committed by the learned Single Judge while allowing the petition and therefore no interference is required in the present appeal. Accordingly, the appeal is dismissed."

14. In view of the above, the petitions are allowed. The

respondents are directed to extend the benefits of

the second higher pay scale to the petitioners with

effect from they completing 15 years of service from

the date of their first higher pay scale. The

pensionary benefits shall also be revised. Arrears of

pay and consequential arrears of pension based on

revision of pay, shall be paid within a period of 12

weeks from the date of receipt of copy of this order.

Rule is made absolute to the aforesaid extent.

(BIREN VAISHNAV, J) ANKIT SHAH